STATE OF HARYANA Vs. JARNAIL SINGH

JUDGEMENT

(1.) The State of Haryana has preferred this appeal by special leave against the judgment and order of the High Court of Punjab and Haryana at Chandigarh dated August 29, 1997 in Criminal Appeal No. 146-SB/96 whereby the High Court acquitted the respondents of the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') for non-compliance with the requirements of Sections 42 and 50 thereof. Earlier, the respondents were tried by the Additional District Judge, Ambala who found them guilty of the offence under Section 15 of the NDPS Act and sentenced them to rigorous imprisonment for 10 years each and to pay a fine of Rs. 1 lakh each and in default of payment of fine to undergo further rigorous imprisonment for two years.

(2.) The facts of the case are not in dispute. The case of the prosecution is that on February 20, 1992 Sub-Inspector Mehar Singh, SHO Police Station Mullana along with Head Constable Om Prakash and other members of the police force, was on patrolling duty and was moving about in a Government jeep. On the way they met Mahinder Singh Ahlawat, Superintendent of Police, whereafter along with him they started checking vehicles moving on the highway at about 8.00 p.m. For this they held a naka bandi on the turning of village Dhanora. At about that time a tanker bearing No. URM-2092 came from the side of Sadhora. It was signalled to stop, but rather than stopping, the tanker sped away. This gave rise to suspicion and, therefore, the tanker was chased and compelled to stop. It was found that there were three persons sitting in the cabin of the tanker and it was being driven by respondent-Mohan Krishan. The others two, namely Jarnail Singh and Prithvi Raj were sitting with him. They were interrogated and thereafter the tanker was searched in the presence of the witnesses and the Superintendent of Police. On the opening of the lid of the middle chamber of the tanker a lot of gunny bags were found lying there. One of the gunny bags was taken out and on being checked it was found to contain poppy husk. Thereafter all the bags were taken out num-bering 73 and on checking, it was found that they also were filled with poppy husk. Weighing scales were brought and the bags were weighed separately. It was found that each bag contained 18 kgs. of poppy husk. Thereafter the samples were sealed as required by law and thereafter all necessary steps were taken under the NDPS Act and the Rules. The respondents were put up for trial and were convicted by the trial Court as noticed earlier. On appeal by the respondents the High Court held that they were entitled to acquittal in view of the fact that the mandatory requirements of Section 50 and Section 42 of the NDPS Act were not complied with. The High Court held that the provisions of Section 50 of the NDPS Act applied and before searching the vehicle the accused had to be informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer. It made no difference that a Superintendent of Police, who was a Gazetted Officer, was a member of the searching party who searched the vehicle. It further held that Section 42 of the Act had not been complied with inasmuch as the SHO Mehar Singh did not record the grounds for his belief before entering upon the search that he had reasons to believe that some contraband offending the NDPS Act was being carried in the vehicle and that an attempt to get a search warrant from a competent Magistrate would frustrate the object or facilitate escape of the offender. Consequently the trial was vitiated also for non-compliance of the provisions of the proviso to Section 42(1) of the NDPS Act.

(3.) In the appeal before us counsel for the State of Haryana contended that the High Court was entirely wrong in holding that the provisions of Sections 42 and 50 of the NDPS Act applied to the facts and circumstances of this case. He argued that the search was not made in a private enclosed place but was made in a public place, namely the highway. Thus Section 43 of the NDPS Act was applicable and not Section 42. There was, therefore, no obligation to comply with the requirements of Section 42. Secondly, Section 50 of the NDPS Act did not apply to the facts of the case because the contraband article was not recovered on personal search of the accused, but on search of the vehicle. Section 50 is limited in its application to personal search.